Embed Size (px)
Citation preview
The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
Presenting a live 90-minute webinar with interactive Q&A
Identifying and Managing Environmental
Risks in Commercial Transactions Identifying, Quantifying and Allocating Potential Liabilities
and Long-Term Environmental Obligations
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
THURSDAY, FEBRUARY 9, 2017
Lawrence P. Schnapf, Principal, Schnapf LLC, New York
William J. Squires, III, Partner, Hinckley Allen & Snyder, Boston
Tips for Optimal Quality
Sound Quality
If you are listening via your computer speakers, please note that the quality
of your sound will vary depending on the speed and quality of your internet
connection.
If the sound quality is not satisfactory, you may listen via the phone: dial
1-866-961-9091 and enter your PIN when prompted. Otherwise, please
send us a chat or e-mail [email protected] immediately so we can
address the problem.
If you dialed in and have any difficulties during the call, press *0 for assistance.
Viewing Quality
To maximize your screen, press the F11 key on your keyboard. To exit full screen,
press the F11 key again.
FOR LIVE EVENT ONLY
Continuing Education Credits
In order for us to process your continuing education credit, you must confirm your
participation in this webinar by completing and submitting the Attendance
Affirmation/Evaluation after the webinar.
A link to the Attendance Affirmation/Evaluation will be in the thank you email
that you will receive immediately following the program.
For additional information about continuing education, call us at 1-800-926-7926
ext. 35.
FOR LIVE EVENT ONLY
Program Materials
If you have not printed the conference materials for this program, please
complete the following steps:
• Click on the ^ symbol next to “Conference Materials” in the middle of the left-
hand column on your screen.
• Click on the tab labeled “Handouts” that appears, and there you will see a
PDF of the slides for today's program.
• Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.
FOR LIVE EVENT ONLY
LAWRENCE P. SCHNAPF
SCHNAPF LLC
WILLIAM J. SQUIRES, III
HINCKLEY, ALLEN & SNYDER LLP
IDENTIFYING AND MANAGING ENVIRONMENTAL
RISKS IN COMMERCIAL TRANSACTIONS
STRAFFORD PUBLICATIONS
FEBRUARY 9, 2017
AGENDA
Purpose of Environmental Due Diligence
Conducting Environmental Due Diligence
Allocating and Mitigating Environmental Risks
6
7
Purpose of Environmental Due Diligence
IDENTIFYING ENVIRONMENTAL RISKS
8
WHY ENVIRONMENTAL DUE DILIGENCE?
Qualify for Defenses Under Environmental Laws Imposing Strict and Joint Liability For Cleanups
Government Cost Recovery and Unilateral Administrative Orders
Third Party Cost Recovery or Contribution Claims
Quantify Material Environmental Liabilities Under Federal and State Laws Imposing Compliance
Obligations
Change in Business Operations
Construction Delays or Overruns
Comply With State and Local Transactional Laws
NJ ISRA; CT Transfer Act
NYC e-designation
Satisfy Lender Requirements
9
WHY ENVIRONMENTAL DUE DILIGENCE?
Evaluate Common Law Liabilities
Successor, Parent, Affiliate Liability
Property Damage Claims
Personal Injury
Evaluate Contractual/Lease Obligations
CERCLA 107(e)-parties may not contract away liability
“As Is” only applies to reps and warranties
Release Should refer to “CERCLA-like” liabilities
10
GOAL OF DUE DILIGENCE
• Not To Eliminate ALL Risk but Understand Material Risks • Cleanup
• Compliance
• Permits for Business Plans
• Culture
• Identify and Allocate (Manage) Risk Based on Nature of Transaction • Stage of Deal (pre-bid, exclusivity period)
• Time, cost, data room vs site assessments
• Deal Killers
• Purchaser Tolerance
• Bid Pricing
• Markup Purchase Agreement
• Identify Potential Mitigation Tools
11
KEY ENVIRONMENTAL LAWS
Principal Sources of Cleanup Liability
CERCLA, 42 U.S.C. 9601 et seq.
RCRA, 42 U.S.C. 6901 et seq.
TSCA (PCBs)
State Versions of CERCLA/RCRA
State Transaction Statues
State Superlien Statutes
12
PRINCIPAL SOURCES OF REGULATORY COMPLIANCE
Clean Air Act (CAA), 42 U.S.C. 7401 et. seq.
Clean Water Act (CWA), 33 U.S.C. 1251 et seq.
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901 et. Seq.
Toxic Substances Control Act (TSCA), 15 U.S.C. 2601 et seq.
Emergency Planning and Community Right to Know (EPCRA), 42 U.S.C. 11001 et seq.
Comparable State Laws
13
CERCLA AUTHORITY
Established “Superfund” to finance cleanups
Authorizes list of most heavily- contaminated sites.
Gov’t May perform cleanups.
Unilateral Administrative Orders to address sites posing substantial and imminent endangerment.
Recover response costs from PRPs.
Permits PRPs to seek reimbursement of response costs from other PRPs.
14
UNILATERAL ADMINISTRATIVE ORDERS 42 USC 9606
EPA may issue UAO when it determines
Release or threatened Release
May pose imminent and substantial endangerment to public health or the environment
Failure to comply without sufficient cause may result in fines and treble damages
15
STANDARD OF LIABILITY
STRICT LIABILITY
RETROACTIVE LIABILITY
Joint (107 actions only)
16
ELEMENTS OF CERCLA LIABILITY
Release
Includes “disposal”
Passive migration vs active disposal
Hazardous Substance
Facility
Response Costs
Remedial or Removal
Consistency with NCP
17
CERCLA LIABLE PARTIES
Current and Former Owners
Current and Past Operators
Generators
Transporters
18
CERCLA OWNER
Current Owner
Past Owner “at time of disposal”
Passive vs. active disposal
Title Holders
Easement Holders
Long-Term Tenants
Parent Corporations
19
CERCLA OPERATOR
Based on Control
Actual vs ability to control
Past Operator “at time of disposal”
Active vs passive disposal
20
CERCLA ARRANGER
Intent to Arrange for Disposal of Hazardous Substance
Sale of raw materials/useful product
Liable if transported to non-approved site
21
TRANSPORTER
Must make decision where to dispose hazardous substances
22
CERCLA AFFIRMATIVE DEFENSES
Act of God
Act of War
Third Party
Innocent Landowner (ILO)
Bona Fide Prospective Purchaser (BFPP)
Contiguous Property Owner (CPO)
23
THIRD PARTY TRANSFERS
Release Solely Caused by TP
No direct and indirect contractual relationship
ILO Exception to this element
Due care
Precaution against foreseeable acts or omissions
24
INNOCENT LANDOWNER DEFENSE (ILO) 42 U.S.C. 9601(35)(A) AND (B)
Did Not Know or Had No Reason to Know of Release
Perform Pre-Acquisition AAI
Comply with Post-Acquisition Continuing Obligations
Cooperate and Provide Access for Persons Performing Response Actions
Comply With Land Use Controls (LUCs)
Provide Access to Persons Maintaining LUCs
25
BFPP - 42 U.S.C. 9601(40)
Applies to transactions after January 11,2002
Applies to Purchasers and Tenants
Applies to brownfield and NPL sites
26
ELEMENTS OF BFPP DEFENSE
Threshold Criteria
Conducted AAI
Not PRP or affiliated with PRP by:
direct or indirect familial relationship
contractual or corporate relationship
Corporate Reorganization
Disposal took place prior to acquisition
27
BFPP DEFENSE ELEMENTS CONT’D
Continuing Obligations
Complied with All Applicable Reporting Requirements
Undertake “Appropriate Care”
Cooperate and Provide Access to Persons Performing Response Actions
Comply With LUCs Provide Access for Persons Maintaining LUCs
Comply with EPA CERCLA Information Requests or Subpoenas
28
CPO DEFENSE 42 U.S.C. 9607(Q)
Owner did not cause, contribute, or consent to release
Conduct “Appropriate Inquiry”
Exercise “Appropriate Care”
Cooperate and Provide Access To Persons Performing Cleanups
Comply With LUCs
Provide Access To Persons Maintaining LUCs
Comply with all release reporting requirements
Comply with EPA CERCLA Information Requests and Subpoenas
Owner not a PRP or affiliated with PRP
29
SECURED CREDITOR EXEMPTION
Holder of Security Interest Not Owner if
Holds “indicia of ownership” primarily to protect security interest
Did Not “Participate in Management” of facility
Post-Foreclosure Immunity if:
Takes commercially reasonable steps to sale property
Does not Cause or Exacerbate Release
Beware of:
RCRA UST Secured Creditor Exemption
RCRA 7002 actions
Common Law Failure to Disclose
30
TYPICAL BANK CONCERNS
Credit Risk
Borrower Ability to Pay Loan
Value of Collateral
Direct Liability
Cleanup costs
Toxic Torts
Reputational Risk
31
TYPE OF LENDER MAY INFLUENCE DILIGENCE
Community Bank
Small borrowers with limited resources for environmental risks
Frequently little or no environmental diligence
SBA 7(a) and 504 programs Loan (SOP 50 10 5(G))
< $150K and not on NAICS list, Environmental Questionnaire
>$150K and on NAICS, perform Records Search with Risk Assessment (RSRA) report.
“High Risk” proceeds to Phase 1
Traditional Balance Sheet/Life Insurance
Borrower financial strength can influence diligence
32
TYPES OF LENDERS
Loan Syndication
Piggy-back on lead lender
Construction Loan
Environmental overruns
Ability to be taken out
Mezzanine Lender
Usually piggy-backs on senior lender
Steps in shows of borrower on default
CMBS Lender
Sells loan to trust
Makes reps about diligence
B-Piece Buyers key role
33
TYPES OF LENDERS CONT’D
Private Equity
Revolving/term loan often with warrants or board seats
Qualify for secured creditor?
34
RCRA GENERATORS
Three types
Large Quantity Generator
Small Quantity Generator
100-1000 kg (220 to 2200 lbs)
Conditionally Exempt Small Quantity Generator
< 100 kg (220 lbs)
Closure Obligations
Run with land
35
RCRA TREATMENT, STORAGE AND DISPOSAL FACILITIES (TSDF)
Permitted or Interim Status Design and Operating Standards Preparedness and Recordkeeping Ground water monitoring Land disposal restrictions Closure/Post Closure Corrective Action Financial Assurance
36
RCRA CORRECTIVE ACTION
Permit Authority- HMWUs and SWMUs
3004 (u) (onsite)
3004 (v) (offsite)
Interim Status and Generators
3008 (h)
Procedure RCRA Facility Assessment (“RFA”) RCRA Facility Investigation (“RFI”) Corrective Measures Study (“CMS”) Corrective Measure Implementation (“CMI”) Corrective Action Management Unit Rule (“CAMU”)
37
7002 AND 7003 INJUNCTIVE RELIEF
7002- Private Parties
Any person “contributing to”
Past or present handling…disposal of solid or hazardous waste
May present imminent and substantial endangerment
7003 Govt. Only
38
UNDERGROUND STORAGE TANKS 42 U.S.C. 6991-6991M
Regulated tanks
Applies to storage of petroleum or hazardous substance
Not apply to heating oil tanks used for on-site consumption
Not apply to tanks storing HW are subject to Subtitle C
Not apply to motor fuel tanks less than 1100 gallons at farms and homes
39
USTS CONT’D
UST Design Standards
Release Reporting
Report spills or overflow of 25 gallons or more
Reportable quantity of hazardous substance
Suspected releases
Corrective Action
UST Closure
Financial Assurance
Secured Creditor Exemption for USTs
40
CLEAN AIR ACT
Permit Programs
NSR (PSD and Non-Attainment)
Title V
New Source Performance Standards (NSPS)
Hazardous Air Pollutants (HAPs)
Risk Management Plans
Asbestos-Containing Programs
GHG Regulation
Title IV Acid Rain and Title VI Ozone-Depleting Substances
41
NEW SOURCE PERFORMANCE STANDARDS (NSPS)
When construction commences- actual physical work or contract has been signed
Any physical change or change in method of operation which increases the amount of any air pollutant regulated under CAA that was not previously emitted.
expressed in hourly emissions rate at maximum physical capacity before and after change
Hourly emission rate is after controls installed
Reconstruction: at least 50% of total cost of a comparable new facility even if no increase in emissions
Minor NSPS exempt from Title V
Purchase Emission Reduction Credits (ERCs)
Best Demonstrated Technology (BDAT)
42
CLEAN AIR ACT
New Source Review (NSR) Construction of new major sources or modification of existing
major stationary sources physical change change in the operation of a major source that results in
Significant net increase in emissions that impacts air quality
PSD vs. Non-Attainment
43
NSR- PSD (ATTAINMENT AREAS)
Major source
any source that belongs to a list of 28 categories
emits or PTE emit 100 tpy of air pollutants regulated by the CAA (except HAPs or any type of source that has the PTE 250 tpy
Significant Net emissions
CO (100 tpy)
NOx, SO2 and VOCs(40 tpy)
PM (25 tpy)
Best available control technology ("BACT")
44
NSR NON-ATTAINMENT(§173)
Only covers six criteria pollutants
LAER (more stringent that BACT)
Major Source- depends on pollutant and classification
Marginal and Moderate Non-Attainment areas: 100 tpy NOx/VOC
Serious Non-Attainment: 50 tpy NOx/VOC.
Severe Non-Attainment: 25 tpy NOx/VOC
Extreme Non-Attainment areas: 10 tpy
CO (100 to 50 tpy);
PM (100-70 tpy)
Offsets- Range from 1:1 to 1:5 depending on the air quality classification
45
CWA PERMIT PROGRAMS
NPDES Permit Program (§402)
Industrial Dischargers
Municipal (POTWs) (§301)
SSO/CSO (§402(q))
Indirect Dischargers (pretreatment-§317)
Stormwater (§ 402(p))
Sludge Disposal (§405)
CAFOs
Wetlands (§404)
46
NPDES
Discharge
Addition of pollutant
Pollutants
Not include fluids to promote oil/gas production
Point Source
Waters of United States
47
NPDES PERMITS
Individual vs General Permits
Duty to Apply
Effluent Limits
Technology (BCT, BPT, BAT, NSPS)
water quality-based standards
Discharge Monitoring Reports
Standard Conditions
Special Conditions
48
COMMON LAW
Negligence
Trespass
Nuisance
Strict Liability for Abnormally Dangerous Activity
49
COMMON CHALLENGES
Historic Contamination
Lack of Awareness (not intentional)
Evolving Standards of Care
Acceptable Practices At Time of Release or Disposal
Lack of Statutory or Regulatory Programs
Truly responsible parties unavailable
Statute of Limitations (SOL)
50
SUCCESSOR LIABILITY OVERVIEW
Asset Purchase
Generally no successor liability unless four exceptions (express/implied assumption, fraud, de facto merger or continuity)
Stock Purchase- liabilities follow purchaser unless excluded
Merger- acquirer assumes liabilities
Bankruptcy (§363 or §1141)
Order may provide for “free and clear” and no successor liability
51
VEIL PIERCING
Parent Corporation Liability for Subsidiary
State Law Predominates
Owner Liability
Direct liability of facility
Operator Liability
Control over operation
Corporate officers may wear “dual hats”
52
53
Conducting Environmental Due Diligence
CONDUCTING ENVIRONMENTAL DUE DILIGENCE
GETTING STARTED
Assemble Experienced Team:
Environmental legal counsel
Environmental consulting team
Knowledgeable EH&S staff
Consider Big Picture
Customize Environmental Due Diligence Request List
Consider Timing
Determine Appropriate Scope and Methods
54
CONDUCTING ENVIRONMENTAL DUE DILIGENCE COMMON METHODS
Phase I Environmental Site Assessments
Phase II Subsurface Investigations
Permitting and Regulatory Compliance Review/Audit
Desktop Reviews
Gather and Review:
Environmental reports, audits and data
Permits, registrations and agency correspondence
General notice letters, 104(e) requests and NFAs
Notices of violation and administrative/judicial pleadings
Agreements relating to previous acquisitions and dispositions of businesses and real property
Environmental insurance 55
CONDUCTING ENVIRONMENTAL DUE DILIGENCE PHASE I ENVIRONMENTAL SITE ASSESSMENT
An inquiry by an environmental professional to ascertain whether there is reason to believe the property is contaminated.
Elements of Phase I ESA (ASTM E1527-13):
Interviews with current and former owners, operators and others
Review of historical sources
Review of public records
Site inspection
Review of information provided by seller
56
CONDUCTING ENVIRONMENTAL DUE DILIGENCE PHASE I ENVIRONMENTAL SITE ASSESSMENT
Standard of Care – Must identify:
Recognized Environmental Conditions (RECs)
Historical Recognized Environmental Conditions (HRECs)
Controlled Recognized Environmental Conditions (CRECs)
Potential for Vapor Intrusion
User Provided Information (i.e., User Questionnaire)
Data Gaps
57
CONDUCTING ENVIRONMENTAL DUE DILIGENCE PHASE II SUBSURFACE INVESTIGATION
Is there contamination?
Nature, extent and source of contamination?
Estimated time and cost to remediate?
Risk to current building occupants?
Impacts to on-going operations?
Impacts to proposed development?
Timing
Relevant Contractual Concepts
Real Estate Purchase Agreement
Site Access Agreement
58
CONDUCTING ENVIRONMENTAL DUE DILIGENCE PERMITTING AND REGULATORY COMPLIANCE
Do the business operations comply with environmental laws?
Does the business have all permits?
Are there pending violations or enforcement actions?
Are major expenditures required to achieve compliance?
Any pending changes in law that will make compliance difficult or expensive?
Is there a risk of citizen suits?
59
CONDUCTING ENVIRONMENTAL DUE DILIGENCE IDENTIFYING PRE- AND POST-CLOSING OBLIGATIONS
Permit transfer requirements
Must permits be transferred? (equity vs. asset)
How and when?
Transfer vs. cancellation & reissuance
Transfer of consent decrees, orders, settlement agreements
May need to assure compliance prior to transfer
Property transfer disclosure requirements
NJ ISRA
CT Property Transfer Act
Other
60
CONDUCTING ENVIRONMENTAL DUE DILIGENCE TO EVALUATE AND STRUCTURE THE DEAL
Allocation of environmental liabilities between buyer & seller
Choice of acquisition type (e.g., asset purchase vs. merger)
Assessment of potential current/future remediation & compliance costs in pricing deal or obtaining concessions
Including discovered or planned capital expenditures
Properly value property to be transferred
Structure deal to ensure application of landowner and/or lender liability protections
Anticipate potential issues with timing of closing
Evaluate need to acquire/supplement environmental insurance
Determine whether to proceed with transaction
61
62
Allocating and Mitigating Environmental Risks
ALLOCATING AND MITIGATING ENVIRONMENTAL RISKS RELEVANT COMMERCIAL TRANSACTIONS
63
Purchase and Sale of Business
Stock Purchase Agreements
Asset Purchase Agreements
Merger Agreements
Purchase and Sale of Real Property
Real Estate Purchase and Sale Agreements
Lease Agreements
Acquisition and Construction Financing
Various Loan Agreements
ALLOCATING AND MITIGATING ENVIRONMENTAL RISKS GENERAL CONSIDERATIONS
64
In General:
One cannot contract away statutory environmental liabilities
Contracts bind the parties to the contract and do not bind third parties
A contractual protection is only as good as the parties’ balance sheet
Consider Purpose, Nature and Structure of Each Transaction
Determine Risk Tolerance of Client(s)
Assess Applicable Legal Requirements
May not be limited to jurisdiction of real property/facility
ALLOCATING AND MITIGATING ENVIRONMENTAL RISKS CONSIDERATIONS SPECIFIC TO DEAL STRUCTURE
65
For Equity Deals:
Successor liability concerns regarding:
Off-site disposal of hazardous waste
Pre-closing violations of environmental laws
Formerly owned, leased or operated real property
Legacy businesses
Merger Agreements
Environmental provisions typically reciprocal
Who are the indemnitors?
For Asset and Real Estate Deals:
Consider likelihood of successor liability exposure
Permit transfers and potential need for new permits
ALLOCATING AND MITIGATING ENVIRONMENTAL RISKS KEY CONTRACTUAL CONCEPTS AND PROVISIONS
66
Contract Concepts and Provisions for Allocating Liability and Responsibility
Definitions
Representation and Warranties
Covenants and Conditions Precedent
Indemnities and Escrows
Releases & Covenants Not to Sue
Purchase Price
ALLOCATING AND MITIGATING ENVIRONMENTAL RISKS KEY DEFINITIONAL TERMS
Environmental Terms:
Environmental Laws
Hazardous Materials
Environmental Liabilities
Existing Environmental Conditions
Response Actions/Response Costs
General Terms:
MAE
Permits
Real Property
Excluded Assets
Knowledge 67
ALLOCATING AND MITIGATING ENVIRONMENTAL RISKS COMMON REPRESENTATIONS AND WARRANTIES
Compliance with environmental laws
Have, maintain and comply with environmental permits
Handling, storage, transportation, disposal and treatment of hazardous materials and wastes in compliance with law
No receipt of notices alleging:
Violations of any environmental requirements;
Third-party liability related to environmental requirements or conditions
No on- or off-site releases of any hazardous substances
Disclosure of all environmental reports, data and documents
68
KEY CONTRACTUAL CONCEPTS AND PROVISIONS REPRESENTATIONS AND WARRANTIES
Potential Limitations
Materiality Qualifiers
Knowledge Qualifiers
Duration & Survival Period
Disclosure Schedules
Remedies for Breaches
Potential Overlap/Conflict with Other R&Ws
Careful Coordination with Client when Giving R&Ws
69
ALLOCATING AND MITIGATING ENVIRONMENTAL RISKS COVENANTS AND CONDITIONS
Pre-Closing Covenants (Examples)
Seller shall operate and maintain all facilities in compliance with all applicable environmental laws
Seller shall immediately notify purchaser of any notices received by seller alleging violations of environmental laws
Seller shall ensure compliance with all permit transfer requirements (or warrant no such requirements)
Post-Closing Covenants
Example - Covenant to complete existing cleanup, post-closing compliance plan, agreement on cleanup standards
Remedies for Breach of Covenants
Example - For seller material breach, purchaser right to terminate with no liability
Conditions to Closing 70
ALLOCATING AND MITIGATING ENVIRONMENTAL RISKS INDEMNITIES
Allocate remediation and other liabilities, including:
Fines, penalties, capital expenditures for violations of law
Tort claims
Natural resource damage claims
Potential Scope of Indemnity - Indemnification for:
Breaches of representations and warranties
Excluded environmental liabilities
Other excluded liabilities (e.g., seller-retained assets)
Known/unknown environmental conditions
71
ALLOCATING AND MITIGATING ENVIRONMENTAL RISKS INDEMNITIES
72
Limitations on Indemnity:
Deductibles
Caps
Thresholds/Deductibles
Survival Periods
For what?
Pre-closing vs. post-closing?
Only what is required by government or anything required by laws?
Voluntary cleanup?
Cleanup of soil and groundwater only?
ALLOCATING AND MITIGATING ENVIRONMENTAL RISKS INDEMNITIES
73
Other Considerations:
What kind of cleanup?
Industrial/commercial versus residential?
Are institutional controls permitted?
Third party claims (e.g., diminished value, toxic tort, business loss)
Who controls relationship with government and decisions regarding cleanup?
Right to comment on reports and attend meetings?
Voluntary testing provision
ALLOCATING AND MITIGATING ENVIRONMENTAL RISKS OTHER ALLOCATION TECHNIQUES
Purchase Price Adjustments
Releases and Covenants Not To Sue
Cost Sharing
Escrows To Fund Cleanup
Deal Structure (e.g., Equity vs. Asset)
Use of Deed Restrictions
Potential Statutory Limitations on Liability
74
ALLOCATING AND MITIGATING ENVIRONMENTAL RISKS USE OF FEDERAL AND STATE MITIGATION TOOLS
Covenants Not to Sue
Contribution Protection
Brownfields Programs:
Grants and Loans
Tax Incentives
Liability Protections
State UST Financial Assurance Funds
EPA Comfort Letters
Voluntary Cleanup Programs
ILOD/BFPP/Eligible Person/Eligible Tenant
75
CONTACT INFORMATION
Lawrence P Schnapf
Schnapf LLC
55 East 87th Street #8B
New York, NY 10128
212.876.3189
www.SchnapfLaw.com
William J. Squires, III
Hinckley, Allen & Snyder LLP
28 State Street
Boston, MA 02109
617.378.4212
www.hinckleyallen.com
76
